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John Dugard, The Judicial Process, Positivism and Civil
Liberty, 88 S. African L.J. 181 (1971)
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THE JUDICIAL PROCESS, POSITIVISM
AND CIVIL LIBERTY*
Comment or criticism which is commonplace in other countries is
often avant-garde, daring and even dangerous in South Africa. This is
particularly true of any discussion of the judicial process. Despite this,
I have chosen to examine the judicial process in my lecture tonight.
My decision is motivated not by bravado, but by a belief that the
immunity from basic criticism at present enjoyed by our judiciary
will, in the long run, be harmful to its prestige. Absence of criticism
does not promote infallibility-it merely encourages belief in infallibility with all its attendant dangers.
Since 1910 the judiciary in South Africa has only twice been subjected to fundamental criticism. During the 1950s the courts came into
conflict with the legislature and the executive over the Coloured vote
and were sharply rebuked by Government spokesmen.' More recently,
as a result of decisions involving the interpretatior of the 90- and 180day detention laws,2 judges have been accused of a leaning in favour
of the executive in matters affecting individual liberty. In 1968,
for example, the International Commission of Jurists complained that
'[i]n spite of a number of courageous decisions at first instance, the overall impression is of a judiciary as "established-minded" as the Executive, prepared to adopt an
interpretation that will facilitate the Executive's
task rather than defend the liberty
3
of the subject and uphold the Rule of Law'.
This latter-day criticism has been repudiated by our judiciary, which
appears to be bewildered by such charges. Its attitude is best summed
* Inaugural address as a Professor of Law in the University of the Witwatersrand, Johannesburg, delivered on 24 March 1971. The author wishes to express his indebtedness to his colleagues
Professor Ellison Kahn and Mr David Zeffertt and to Mr R S Welsh QC for their helpful
suggestions and comments during the preparation of this paper.
LSee the statement by the Prime Minister, Dr D F Malan, issued after the decision of the
Appellate Division in Harris v Minister of the Interior 1952 (2) SA 428 (AD): House of Assembly
Debates vol 78 col 3124 (20 March 1952). During the same period the courts were criticized by
government spokesmen on other issues. See, for instance, the comments by Mr G F van L
Froneman MP on decisions of the Appellate Division on equal amenities for all races (House of
Assembly Debates vol 82 cols 2044-54 (20 August 1953)) and by the Minister of Justice, Mr C R
Swart, on the judicial criticism of compulsory sentences (reported in G A Mulligan 'Judicial
Criticism of Legislation' (1953) 70 SALJ 35).
2 Section 17 of the General Law Amendment Act 37 of 1963 and s 215bis of the Criminal
Procedure Act 56 of 1955 inserted by s 7 of the Criminal Procedure Amendment Act 96 of 1965.
3 Erosion of the Rule of Law in South Africa iv. See further criticisms of this nature in A S Mathews
& R C Albino 'The Permanence of the Temporary-An Examination of the 90- and 180-Day
Detention Laws' (1966) 83 SALJ 16 especially at 37; Jean Davids 'The Courts and 180-Day
Detention' (1967) 84 SALJ 262; John Dugard 'The Courts and Section 6 of the Terrorism Act'
(1970) 87 SALJ 289; E Landis Repressive Legislation of the Republic of South Africa (United Nations,
New York, 1969) 8-9. Sed contra, Marinus Wiechers 'Die Legaliteitsbeginsel in die Administratiefreg' (1967) 30 THR-HR 309 at 328.
l6Z
THE SOUTH AFRICAN LAW JOURNAL
up by the ex-ChiefJustice, Mr Justice L C Steyn, who publicly replied
to the courts' critics by stating that '[i]t would be an evil day for the
administration of justice if our courts should deviate from the wellrecognized tradition of giving politics as wide a berth as their work
permits' and that in interpreting the 90-day detention law '[t]he task
of our courts-I would emphasize, their only task-was to ascertain
the intention of Parliament as expressed in this enactment'."
It is my purpose tonight to offer a jurisprudential explanation for
the current censure of our judiciary and to suggest, in all humility, a
course which might profitably be pursued by the courts if they are to
avoid further criticism of this kind. In so doing, I shall confine myself
mainly to the subject of judicial interpretation of statutes invading
individual liberty.
Basically, ourjudiciary adopts a narrow approach to its interpretative
function. It takes the view that the sole task of the court in interpreting
a statute is to discover the legislature's intention through rules of
interpretation. 5 Its function is seen as purely mechanical or phonographic. The intention of the legislature is always discoverable, provided the right rules of interpretation are used in the right manner.
The judge is denied any creative power in his mechanical search for
the legislature's intention, and desirable policy considerations, based
upon traditional legal values, are viewed as irrelevant. This approach
accords with the Blackstonian theory thatjudges are authorized to 'find'
the law only, not to make it.6 Judge Jerome Frank in his iconoclastic
Law and the Modern Mind has characterized this judicial approach as
follows:
'Judges are simply "living oracles" of law. They are merely "the speaking law".
Their function is purely passive. They are "but the mouth which pronounces the
law". They no more make or invent new law than Columbus made or invented
America.'7
4 Address on 'Regsbank en Regsfakulteit' to the University of South Africa, published in
(1967) 30 THR-HR 101 at 106-7.
5 See the comments by Steyn CJ immediately above, and James JP in 'Law and the Idea of
Justice' (1968) 31 THR-HR 321. (Such an approach permeates L C Steyn's Die Uitleg van Wette,
which describes in considerable detail the technical rules of interpretation which are to guide a
court towards the legislature's intention but which contains no reference to the nature of the
judicial process itself in this field. It is particularly significant that the bibliography does not refer
to any of the numerous modem studies on the judicial process and the interpretation of statutes.)
A more realistic approach to the interpretative function is adopted by Mr Justice M A Diemont
in 'Law Teachers and the Law' 1968 ActaJuridica1 at 3-4.
6 Blackstone Commentaries 4 ed (edited by R M Kerr, 1876) 1 47. This view is still recognized
by some British lawyers. For instance, Lord Jowitt, Lord Chancellor from 1945 to 1951, declared
at the Australian Law Convention of 1951 that judges should not be expected to work out
'a whole set of new principles . . . [to] accord with the requirements of modem conditions.
Leave that to the legislature, and leave us to confine ourselves to trying to find out what the
law is' (1951) 25 Australian LJ 296. In 1932 the Committee on Ministers' Powers assumed 'that the
function of the courts is mechanical, uncreative and never discretionary': J A G Grifith and
H Street Principles of Administrative Law 2 ed (1957) 143 (Report of the Committee on Ministers'
Powers, Cmd 4060 (HMSO, 1932)). For criticisms of this view of the judicial function, see
Kenneth Culp Davis 'The Future ofJudge-made Public Law in England: A Problem of Practical
Jurisprudence' (1961) 61 Columbia LR 201 at 210ff; W Friedmann Legal Theory 5 ed (1967) 438-9
and 'Statute Law and its Interpretation in the Modem State' (1948) 26 CanadianBar Rev 1277 at
1279ff; Dennis Lloyd The Idea of Law (1964) 259-62.
7 p32.
JUDICIAL PROCESS
183
This view of the judicial function is, of course, patently incorrect.
In drafting a statute the government draftsmen cannot possibly foresee
all the problems likely to arise in connection with that statute.
Frequently the court is called upon to 'discover' the intention of the
legislature on a subject in respect of which the legislature clearly had
no intention at all, on a subject which the legislature could not possibly
have considered.8 In such a situation the judge's 'discovery' of Parliament's intention is a fiction. 9 His finding is his own opinion of what
Parliament would have intended had it applied its mind to the subjectwhich it did not! On the route to this conclusion rules of interpretation
are invoked in support of the judge's finding, but, frequently, these
rules are used not to guide a judge to a particular interpretation, but to
justify"° an interpretation already arrived at by judicial intuition. That
the judge plays a creative role in filling in the gaps of the statute in such
a case can hardly be denied."
The South African judiciary has been relatively frank about its
law-making function in the development of the common law.12 In
this respect it has shown a greater understanding of the judicial process
than the English judiciary.ls Why, then, is it that the myth of judicial
sterility is preserved in the case of the interpretation of statutes? Why
do we still adhere to the phonographic theory of the judicial function
in this sphere?
The answer, I suggest, lies in the acceptance of positivism as a
jurisprudential guide.
There is hardly time tonight to embark upon a full discussion of the
creed of legal positivism. Broadly, it can be said to be based on two
cardinal beliefs; first, the truth of the theory of command, and
secondly, the need for the strict separation of law and morality. 4 The
8
This matter was convincingly analysed by Max Radin as follows: 'To say that the intent of
the legislature decides the interpretation is to say that the legislature interprets in advance by
undertaking the impossibility of examining a determinable to see whether it can cover a situation
which does not exist' ('Statutory Interpretation' (1930) 43 Harv LR 863 at 871-2).
9 Ibid at 870; Salnond Jurisprudence 9 ed (edited by J L Parker, 1937) 94-5. Sed contra, the
comment of the editor ibid 95.
10 Gidon Gottlieb The Logic of Choice (1968) 101-4, 159; Friedmann Legal Theory 462; Otto
Kirchheimer PoliticalJustice (1961) 187; R W M Dias 'The Value of a Value-study of Law'
(1965) 28 Mod LR 397-9.
11This inescapable truth is accepted by today's foremost positivist, H L A Hart, who has
described the area in which the judge is given creative powers in interpreting a statute as the
'penumbra of debatable cases' in contrast with the 'hard core of... settled meaning': 'Positivism
and the Separation of Law and Morals' (1958) 71 Hars, LR 593 at 607. See too H R Hahlo and
E Kahn The South African Legal System and its Background (1968) 212 and 306.
12See the comment of Schreiner JA in Daniels v Daniels 1958 (1) SA 513 (AD) at 522-3 and
the cases cited in Hahlo and Kahn op cit 305. See, too, the illuminating remarks by Steyn CJ in
(1967) 30 THR-HR 101 at 104 and the comments thereon by Wouter de Vos 'Vrye Regsvinding?'
(1967) 30 THR-HR 362 and Pieter Henning 'Reg, Billikheid en in Verband Daarmee Regterlike
Regsvorming' (1968) 31 THR-HR 242. The Appellate Division, under the ChiefJusticeship of
Mr Justice L C Steyn, has effected major reforms in respect of the common-law principles of
criminal law, which reveal a progressive attitude towards judicial law-making. Despite this the
court has persisted in adopting a narrow approach to the interpretation of statutes. Judicial
behaviour of this kind is not, however, peculiar to South Africa: see E Bodenheimer 'Analytical
Positivism, Legal Realism and the Future of Legal Method' (1958) 44 Virginia LR 365 at 377.
Is Brian Abel-Smith and Robert Stevens Lawyers and the Courts (1967) 121, 287-8.
"' Hart op cit 601-2; Lon L Fuller 'Positivism and Fidelity to Law-A Reply to Professor Hart'
(1958) 71 Harv LR 630 at 640, 656; Friedmann Legal Theory 256-91.
154
TIM SOUTH AFRICAN LAW JOURNAL
high priest of positivism, John Austin, defined law as the 'command of
the uncommanded commanders of society ' 15 and insisted that a strict
division be maintained between law as it is and law as it ought to bethat is, between law and morality.18
Positivism, inspired by Austin and Jeremy Bentham, was the predominant legal philosophy of nineteenth-century England.17 It was
exported to the Cape after the British annexation of 1806, where it
took root and flourished. Soon it replaced the Roman-Dutch naturallaw heritage of Grotius and Voet.18 Natural law, which has undergone
many changes since the days of the Greek philosophers, the medieval
scholars and Roman-Dutch jurists, is characterized by a belief in a
higher ideal law to which man-made law is subordinate or should
aspire. In the Orange Free State and South African Republic attempts
were made to revive natural-law philosophy in rigid Constitutions with
which the laws of the respective Volksrade were obliged to conform.
But, after Chief Justice Kotze struck down the 'laws' of the Transvaal
Volksraad for non-conformity with the Grondwet in Brown v Leyds
NO, 19 President Kruger declared the testing right-and hence the
notion of a higher law-to be a 'principle of the Devil'20 and proclaimed
the supremacy of the Volksraad. This notion, which lives on in the
principle of Parliamentary sovereignty, accords fully with the Austinian
command theory. So it was that by 1908 Sir John Wessels was able
to declare that
'[tihe whole theory of the Law of Nature is now so thoroughly exploded that it is
difficult for the modem student to imagine how the jurists of former years ever
came to attach such importance to the abstraction-Natural Law'.21
There were two major reasons for the acceptance of positivism in
22
South Africa: first, the decline of natural-law doctrine in Europe;
secondly, the pervasiveness of English legal influence. Natural-law
theories were never received with the same enthusiasm in England as
they were on the continent of Europe. 23 Whatever influence natural
law may have had in England2 was finally destroyed by the advent of
positivism and utilitarianism in the nineteenth century. English judges,
university law schools and the inns of court, where most barristers
received their legal education, fell under this influence. Positivism
15Hart
op cit 603.
16 Ibid 596-7; Bodenheimer (1958) 44 VirginiaLR 368.
17 For a study of the effect of Austin on nineteenth-century English legal philosophy, see
Gustav Radbruch 'Anglo-American jurisprudence through Continental Eyes' (1936) 52 LQR 530.
18 For a description of this heritage, see Sir John Wessels History of the Roman-Dutch Law
(1908) 291-3.
19 (1897) 4 Off Rep 17.
20Notulen Eersten Volksraad, 1898, 153-4. Cited in Sir John Kotz6's Memoirs and Reminiscences II
(nd (1949?)) xli-xlii.
21 History of the Roman-Dutch Law 291. For a similar remark of more recent vintage, see
Wouter de Vos op cit 365 (cf Henning op cit 249).
22Friedmann Legal Theory 128, 132.
23 In Anglia minus curatur de jure naturali quam in aliqua regione de mundo, said a glossator of
Bracton (quoted in W Holdsworth History of English Law 114 ed (1936) App 1 602).
4 Friedmann Legal Theory 133ffi
JUDICIAL PROCESS
1O
dominated legal education. Lawyers were trained to concern themselves with rules of law alone and their mechanical application and to
avoid any speculation about the law as it ought to be. 2s As advocates
in the Cape Colony were originally obliged to be members of a
United Kingdom Bar or doctors of law of Oxford, Cambridge or
Dublin,2 6 South African advocates and judges were exposed to full
positivist influence.
Canada, Australia and New Zealand were similarly exposed.27 It is
interesting to compare the 'legal colonization' of these countries with
that of America which was colonized during the heyday of Sir Edward
Coke28 and which severed ties with Britain before the advent of Austin
and Bentham. There, Coke's natural-law notion of a higher immutable
law, which Parliament itself was obliged to obey,29 took root and
thrives today in American legal institutions. It is fascinating to speculate what would have happened had South Africa, like America, been
colonized by Britain in the seventeenth century. Would we today have
a rigid Constitution with a Bill of Rights and judicial review?
The twentieth century has seen the revival of natural law and the
appearance of new theories ofjurisprudence.3° The United States and,
to a lesser extent, Canada"' have felt the full impact of the sociological
and realist theories of law as well as the post-World War H revival of
natural law. Britain, while adhering to the positivist creed,31 has moved
away from the full rigours of Austinian theory under the guidance of
modem positivists such as H L A Hare3 and Dennis Lloyd.3 In general,
there has been an awakening of interest in jurisprudence and the nature
of law. South Africa, however, has remained almost untouched by
twentieth-century jurisprudential opinion. In this respect she resembles
post-World War I Germany, where positivism was the only legal
philosophy acceptable to the legal profession. This stance, with its
servile obedience to the will of the sovereign and strict distinction
between law and morals, was exploited by Hitler and resulted in the
2 Abel-Smith and Stevens Lawyers and the Courts25-7, 63-76, 165-85, 365-75 and In Search of
Justice (1968) ch 10. For a strong positivist and conservative statement on the nature of English
legal education, see W T S Stallybrass 'Law in the Universities' (1948) 1 Journalof the Society of
Public Teachers of Law 157.
25 H R Hahlo and E Kahn The Union of South Africa: The Development of its Laws and Constitution (1960) 205-6. In 1858 provision was made for local qualifications: ibid 218.
27 Canadian Jurisprudence: The Civil Law and Common Law in Canada, edited by Edward
Mc'Whinney (1958) 10, 16; Edward McWhinney Judicial Review in the English-speaking World
(1956) 59, 79.
28For an excellent account of the influence of Coke on American legal thought, see A E Dick
Howard The Road from Runnymede: Magna Carta and Constitutionalism in America (1968) 46,
118-24, 137-8, 168.
29DrBonham's Case (1610) 8 Co Rep 113b, 77 EL 646.
30Jerome Hall 'The Present Position of Jurisprudence in the United States' (1958) 44 Virginia
LR 321.
31 CanadianJurisprudence10-15.
2 Hall op cit; H L A Hart 'Philosophy of Law and Jurisprudence in Britain (1945-1952)'
(1953) 2 American Journal of ComparativeLaw 355.
"3 See, in particular, The Concept of Law (1961).
4 Introduction to Jurisprudence,preface to first edition (1959); 7Te Idea of Law ch 5.
IZ36
THE SOUTH AFRICAN LAW JOURNAL
debasement of the German legal system. 5 In present-day South Africa
the austere doctrine of the imperative nature of law and the rigid
separation of law and morality still flourish in their pristine Austinian
purity. This is manifested in a variety of ways, of which the more
obvious are the largely quiescent attitude of the legal profession
towards statutes invading individual liberty;6 the mechanical search
of the judiciary"7 for the legislature's intention in these same statuteswith firm adherence to the distinction between strict law and legal
values; the failure of legal education to relate law to the social sciences;
and the general lack of interest among lawyers in the nature and role
of law in modem South African society.
Legal academics must accept a major part of the blame for this.
While our legal journals and textbooks abound with erudite descriptions and analyses of legal rules, the number of articles and texts devoted
to legal theory is pitifully limited. Of our books only Hahlo and Kahnl's
The South African Legal System and its Background (1968) and L J Du
Plessis' brief Inleiding tot die Algemene Regsleer of Jurisprudensie(1943)
deal with legal theory. Similarly, very few articles38 have been written
about the nature and function of law in South Africa.3 It is scarcely
surprising therefore that the only theory of law to have
received the
40
express blessing of our courts is Austinian positivism.
The twin principles of positivism-command and the separation of
law and morality-manifest themselves in statutory interpretation in
the following ways:
First, our courts have accepted the rigid distinction between the
31Bodenheimer 'Significant Developments in German Legal Philosophy since 1945' (1954)
3 American Journal of Comparative Law 379 at 380-1; Fuller op cit 658-61. Cf Kirchheimer
op cit 212.
" In order to obtain authoritative information on the attitude of the legal profession towards
statutes invading individual liberty the author sent questionnaires to sixteen bodies representing
the organized legal profession (ie all law societies and bar councils) in November 1970. Only five
of the bodies in question have had the courtesy to reply to the author to date, and of these only
one, the General Council of the Bar, has answered the questionnaire. The writer, having exhausted
his efforts to obtain such information, is therefore compelled to conclude that from most of the
organizations representing the profession there is no information to obtain, viz that they have no
definite attitude towards laws which invade individual liberty. In fairness, it should be added that
although neither the Johannesburg Bar Council nor the Incorporated Law Society of Natal has
replied to the author's questionnaire, the author is aware of their strong opposition to legislation
conferring arbitrary powers on the executive to interfere with personal liberty. In 1970 the
Johannesburg Bar condemned s 6 of the Terrorism Act 83 of 1967 (Rand Daily Mail 28 May 1970)
and the Incorporated Law Society of Natal reaffirmed its 'abhorrence' of any statute denying due
process of law, interfering with the presumption of innocence of an accused person or permitting
interference with personal liberty without access to a court of law (1971 De Rebus Procuraioriis
(March) 117).
37Positivism undoubtedly leads to a mechanical approach to the judicial function, despite the
fact that Austin himself, unlike Bentham, favoured judicial lawmaking: Friedmann Legal Theory
263, 317; Lloyd The Idea of Law 261-2; Robert B Seidman 'The Judicial Process Reconsidered
in the Light of Role-theory' (1969) 32 Mod LR 516 at 529.
38 Perhaps the most significant of these is George Findlay's 'The Source of Law' (1948) 65
SALJ 497.
59 This takes no account of the considerable number of excellent articles of a constitutionalcum-jurisprudential nature dealing with sovereignty and the Rule of Law.
40 R v Koenig 1917 CPD 225 at 242, Byers v Chinn 1928 AD 322 at 329, R v Christian 1924
AD 101 at 124. See the comment on these decisions by J D van der Vyver 'Die Regsbegrip'
(1962) 25 THR-HR 1 at 2-3, 13.
JUDICIAL PROCESS
187
legislative function and the judicial function inherent in the command
theory and regard it as their duty to analyse and interpret the will of
Parliament 'but not to "reason why" '.4 This enables the judiciary to
apply the harshest of laws with an easy conscience and sometimes
results in a failure to grasp the extent to which technical rules of interpretation may be invoked to moderate the law's inequities.
Secondly, the rigid distinction between law and morality leads to a
rejection of legal values-as opposed to positive legal rules-which
results in the repudiation of policy considerations in the judicial
process. 42 On several occasions in recent years our courts have indicated
that they 'will not sit in judgment on matters of policy' 4" while in
off-the-bench statements several judges have stressed their intention of
'giving politics as wide a berth as their work permits'." In the instance
in which judges are most clearly called upon to make policy decisionsin hearing appeals under the Publications and Entertainments Act 5-
several judges, outside Natal, have voiced their objections to having
to deviate from their phonographic role to that of policy-makers."
To put it mildly, our judiciary is shy of policy considerations.
I have attempted to present the picture of a judiciary which views
its task in the field of statutory interpretation as a purely mechanical
one; of a judiciary content to leave all policy matters to Parliament;
of a judiciary seemingly immune to value judgments. Many will say:
'This is wonderful. If legal positivism can produce such results, long
live positivism.' Supporters of this view point to the unrivalled excellence of the apolitical English judiciary, upon which our judiciary has
modelled itself, and contrast it with the politically involved American
Supreme Court. This is the theme of a recent article by Mr Justice
Claassen in which he states that he is reliably informed that 'the English
judges, who are undoubtedly the most eminent judges in the world,
47
consider only the South African judges as their equals'.
So far, so good. But isn't this all a bit too good to be true? Can
judges really stand aloof from society and its problems? Isn't there
perhaps a flaw somewhere?
Of course there is. Judicial positivism cannot eradicate inarticulate
premisses. As long as the judicial function is entrusted to men, not
automatons, subconscious prejudices and preferences will never be
41 Friedmann 'Legal Philosophy and Judicial Lawmaking' (1961) 61 Columbia LR 820 at 823.
" Henning op cit 247.
'3 Steyn CJ in S v Tuhadeleni 1969 (1) SA 153 (AD) at 172. See too the statement of HolmesJA
in Minister of Interiorv Lockhat 1961 (2) SA 587 (AD) at 602.
" Steyn CJ supra text to n 4; JamesJP supra n 5; LudorfJ in his foreword to Isaac Goodman's
Judges I Have Known (1969) xii; Centlivres CJ in his address at the Harvard Law School on the
occasion of the Bicentennial of ChiefJustice Marshall, 'The South African Constitution and the
Rule of Law', printed in 1956 Butterworths South African Law Rev 3 at 5 and Government under
Law, edited by Arthur E Sutherland (1968) 423 at 427.
" Act 26 of 1963.
"6See the dicta of RumpffJA in Publications Control Board v William Heinemann Ltd 1965 (4)
SA 137 (AD) at 156 and Snyman J in SA Magazine Co (Pty) Ltd v Publications Control Board
1966 (2) SA 148 (T) at 150-1.
'1 'Retain the Bar and Side-Bar' (1970) 87 SALJ 25.
188
THE SOUTH AFRICAN LAW JOURNAL
completely removed from the judicial process. They will only be
concealed. This is the message of the American school of legal realists
which views law as simply the prediction of what the courts will do;
of how the judges will behave in a particular situation."
Mr Justice Oliver Wendell Holmes once said:
'The language ofjudicial decision is mainly the language of logic. And the logical
method and form flatter that longing for certainty and for repose which is in every
human mind.... [But] behind the logical form lies a judgment as to the relative
worth and importance of competing legislative grounds, often an inarticulate and
judgment, it is true, and yet the very root and nerve of the whole
unconscious 49
proceeding.'
In similar vein Mr Justice Cardozo stated:
'Deep below consciousness are.., forces, the likes and the dislikes, the predilections
and the prejudices, the complex of instincts and emotions and habits and convictions,
which make the man, whether he be litigant or judge .... There has been a certain
lack of candour in much of the discussion of the theme, or rather in the refusal to
discuss it, as ifjudges must lose respect and confidence by the reminder that they
are subject to human limitations.' 50
Judge Jerome Frank, enfant terrible of the legal realists, presents an
even more provocative analysis of the judicial process. He contends
that a judge seldom works out a conclusion from principle. In most
cases he reaches his conclusion first and then finds legal rules to justify
it. The conclusion is really a judicial 'hunch' produced by the interaction of rules of law and concealed stimuli such as the judge's education, race and class, and his political, economic and moral prejudices61
52
In short, 'a judge's decisions are the outcome of his entire life-history'.
This view of the judicial process is strongly repudiated by the judge
who seeks security in the theory of command. 8 and denies his creative
role. Frank, however, claims that this orthodox approach to the judicial
process is 'a myth-a false affirmation without complete knowledge of
its falsity. . . . When judges and lawyers announce that judges can
never validly make law, they are not engaged in fooling the public;
they have successfully fooled themselves.'M He then goes on to say that
'those judges who are ... most swayed by the "perverting influences of their own
emotional natures" . . . are often the very judges who use most meticulously the
language of compelling mechanical logic, who elaborately wrap about themselves
the pretense of merely discovering and carrying out existing rules'.55
Frank may overstate the case. But the role played by the inarticulate
premiss in the judicial process cannot be refuted56 Moreover, there is
considerable support for the view that it flourishes best when its
8Friedmann Legal Theory 292ff.
49'The Path of the Law' (1897) 10 Harv LR 457 at 465-6. See too his dissenting opinion in
Lochner v New York (1905) 198 US 45 at 76.
50 The Nature of the JudicialProcess (1921) 167-8.
51Law and the Modem Mind 100-5.
55 Ibid 137-8.
"Ibid 37.
53 Ibid 193.
52 Ibid 115.
56 See the comment of Wiffiamson JA in Publications Control Board v William Heinemann lid
1965 (4) SA 137 (AD) at 163.
189
JUDICIAL PROCESS
existence is denied or concealed. Positivism, by promoting a mechanical, value-free, approach to the judicial process, provides ajurisprudential cloak of concealment, and thereby encourages subliminal forces. 51
After a study of the judicial process in the English-speaking world,
Professor Edward McWhinney of McGill Law School concludes that
'the real danger of the whole positivist approach.
. .
is that it is those judges who
strain hardest in their search for the logical intensity of words... who are most
likely to be governed by "inarticulate major premisses"-concealed judicial
preferences for one or other set of consequences flowing from a particular decision.
The vice of legal positivism here would be, not that it leads to value-oriented
decisions ... but that the values operate covertly producing results that are both
undemocratic ... and also inefficient (in so far as the judicial weighing of values and
interests is at best impressionistic, without full and adequate consideration of the
policy alternatives actually available to the court).'5s
A number of recent studies5l have shown that even-or particularlythose English judges who, according to Mr Justice Claassen, 'are
undoubtedly the most eminent judges in the world', have often been
guilty of concealing their inarticulate premisses from public gaze behind
the fig leaf of positivism. Some decisions of the English courtsphrased in impeccable positivist terminology0-on social welfare and
trades-union legislationil-probably justify the comment that legal
positivism amounts to 'conservative politics in the guise of analytical
jurisprudence'.62 This should not be too surprising as English judges
are drawn from a narrow social 6lite and have been driven inevitably
by subconscious forces to interpret statutes which threaten their
privileged position in favour of the status quo or status quo ante.68 The
Privy Council, too, has been accused of invoking the positivist creed
to attain conservative results."
57 Friedmann Legal Theory 436.
58
JudicialReview in the English-speaking World 186-7. See too at viii-x. 76-7, 183. See further
Friedmann 'Judges, Politics and the Law' (1951) 29 CanadianBarRev 811 at 825-37 and 'Property,
Freedom, Security and the Supreme Court of the United States' (1956) 19 Mod LR 461.
59 McWhinney op cit 44-8; Friedmann Legal Theory 449-51, 471; Abel-Smith and Stevens
Lawyers and the Courts 46-7, 114-21, 307-8 and In Search ofJustice cl 6; Julius Stone Legal System
and Lawyers' Reasonings (1964) 288-92; W I Jennings 'Courts and Administrative Law-the
Experience of English Housing Legislation' (1936) 49 Harv LR 426 and 'Judicial Process at its
Worst' (1937) 1 Mod LR 111. Sed contra, C K Allen Law in the Making 7 ed (1964) 529.
60On the way in which English judges pride themselves on their mechanical function, see
Robert B Stevens 'The Role of a Final Appeal Court in a Democracy: The House of Lords
Today' (1965) 28 Mod LR 509; Davis (1961) 61 Columbia LR 201.
e1In one of these cases, Roberts v Hopwood [1925] AC 578, Lord Atkinson articulated his
premiss dearly when he condemned a minimum wage granted by a local authority as being
'guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist
ambition to secure the equality of sexes in the matter of wages in the world of labour' (at 594).
Wolfgang Friedmann rightly comments that this case compares well 'with some of the more
prejudiced approaches of the American Supreme Court to constitutional problems' (Legal
Theory 450). For a similar decision of more recent vintage see Prescott v Birmingham Corporation
[1955]
Ch 210.
6
2Jonathan Cohen 'Theory and Definition in Jurisprudence' (1955) 29 Aristotelian Society
(Supplementary Volume) 213 at 234.
" Abel-Smith and Stevens Lawyers and the Courts 299-301 and In Search ofJustice 173-4, 190;
HaroldJ Laski Studies in Law and Politics(1932) 203-21; Scrutton LJ 'The Work of the Commercial
Courts' (1921) 1 Camb LJ 6 at 8.
" McWhinney op cit 16, 28-30; Abel-Smith and Stevens Lawyers and the Courts 119; W I
Jennings 'Constitutional Interpretation: The Experience of Canada' (1937) 51 Hart, Uk 1;
190
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In South Africa there is little recognition of the role played by the
inarticulate premiss in the judicial process. Academic lawyers may
have been to blame for not drawing attention to it earlier65 and perhaps
it is too late now, as the recent decision of the Transvaal Provincial
Division in S v Van Niekerk66 has generally been interpreted as a
warning against academic enquiry into the judicial process in sensitive
areas. Judges, too, have been silent about the presence of inarticulate
premisses. We have not produced a Holmes, Cardozo or Frank to
reveal the mechanism of the judicial mind. The only judicial admission
of the inarticulate premiss I have been able to discover is that of Mr
Justice F N Broome, Judge President of Natal from 1951 to 1960,
which runs as follows:
'The judge's mental make-up must necessarily influence his judgment, and the
influence is of course nearly always subconscious. Nearly every judge who has
anything ofajudicial personality... may be placed in one or other of two categories
which are difficult to describe precisely but which may broadly be called the
conservative and the liberal, the right and the left, the category of those who lean
towards the rights of the State and the category of those who lean towards the
rights of the individual. I have no doubt that I belong to the former category....
This fact undoubtedly coloured my approach to many of my judicial problems.
I may add that of all the judges with whom I have ever sat I can pick out only one
whom it would be difficult to place in either category. . . .'67
Assuming that our judges are human and capable of being influenced
by subconscious stimuli, one may ask: what is their major inarticulate
premiss?
South African judges -ire all drawn from one small section of the
population-the white group. Whether they support the government
or not, most have one basic premiss in common-loyalty to the status
quo.68 This premiss, 9 which seldom surfaces in judicial decisions, may
manifest itself in a variety of ways, depending upon the background
and outlook of each judge. For instance, it may take the form of
opposition to social intercourse between races, of antagonism to
Louis LJaffe English andAmerican Judges asLawmakers (1969) 25-7; Friedmann (1951) 29 Canadian
Bar Rev 811 at 827-8, 831-2; Claire Palley 'The Judicial Committee of the Privy Council as
Appellate Court-the Southern Rhodesian Experience' 1967 Public Law 8.
"I have not been able to find any serious study of this subject in South African legal literature,
with the possible exception of Julius Lewin's 'Power, Law and Race Relations in South Africa'
(1959) 30 Political Quarterly389, which touches very briefly on the matter. A J Kerr came dose
to a discussion of inarticulate premisses in 'The Courts and the Law' (1969) 86 SALJ 179 at
189-90 but withdrew at the moment of truth! Claire Palley raises the subject in respect of
Rhodesia in a study of'The judicial Process: UDI and the Southern Rhodesian Judiciary' (1967)
30 Mod LR 263.
" 1970 (3) SA 655 M. See further on this case, J R L Milton 'A Cloistered Virtue?' (1970)
87 SALJ 424 and J C van der Walt's note in (1970) 33 THR-HR 302.
67 Not the Whole Truth (1962) 262-3. In Daniels v Daniels 1958 (1) SA 513 (AD) Schreiner JA
(at 522) approved a statement on judicial law-making by Mr Justice Holmes in The Common Law
which contains a reference to judicial prejudices. It would, however, be going too far to see in
this recognition of the part played by the inarticulate premiss in the judicial process.
" For studies of White South African attitudes which support this view see I D MacCrone
Race Attitudes in South Africa (1957) 263, 295, 308-10 and W Hudson, G F Jacobs and S Biesheuvel
Anatomy of South Africa (1966) 34, 38, 77.
0 This premiss corresponds in some ways to the 'upper-class premiss' of the English judiciary,
which was frankly admitted by Scrutton LJ op cit 8.
JUDICIAL PROCESS
VoI
radical political change, of sensitivity to foreign criticism of the
Republic. Inevitably there will sometimes be a subconscious communion of opinion between members of the judiciary and the executive drawn from the same privileged white elite, in cases involving
disputes between individuals bent on radical change and the State.
This is what is at the root of the accusation that the South African
judiciary has become 'establishment-minded'. There is no suggestion
of deliberate bias. All that is suggested is that by relying on mechanical,
positivistic methods of statutory interpretation, ° judges have been
subconsciously influenced by submerged forces which may sometimes
coincide with the will of the executive. Professor Mathews has summed
it up well as follows:
'Positivism has always flourished when the laws favour the group of which the legal
administrators are representatives. It enables the courts to take the laws at their face
value and to avoid finctional enquiries which might disclose the sectional interests
advanced by these laws. The peculiar vice of positivism is that it allows the courts
to conceal the7 "inarticulate major premise" of a decision behind seemingly objective
legal forms.' '
This subject is an extremely delicate one which is difficult to discuss
in terms of recent decisions. Instead I have chosen a group of cases
from the relatively distant past to illustrate how unexpressed premisses
may influence the judicial process.
In 1913 the Immigrants Regulation Act 72 was passed, which
empowered the Minister of the Interior to prohibit as immigrants 'any
person or class of persons deemed by the Minister on economic
grounds... to be unsuited to the requirements of the Union or any
particular Province thereof'. 73Later that year the Minister issued regulations declaring every Asian person to be unsuited on economic grounds
to the Union and to every province in which he was not already
domiciled. The effect of these regulations was to make all Asians prohibited immigrants and to restrict the free movement of Asians from
one province to another.
When the Minister introduced the Immigrants Regulation Bill in
the House of Assembly he explained that it was necessary to resort
to the devious course of prohibiting non-white Asian immigration
by regulation and not by statute in order to avoid offending the
British Government. The South African Government's intention of
excluding all non-white Asians was, however, made quite clear.14
70The inarticulate premiss may enter into the fact-finding process too and this will inevitably
affect statutory interpretation: Frank op cit 106 and 'Say it with Music' (1948) 61 Harv LR 921
at 947-8.
71Law, OrderandLiberty inSouth Africa (unpublished PhD thesis University of Natal 1970) 417.
7222 of 1913.
73Section 4.
7'The Minister of the Interior, Mr A Fischer, stated that 'if the question were not complicated
he would like to call a spade a spade and say clearly and exactly those they wanted to keep out,
but they recognized their imperial obligations, and that they were pait of the British Empire,
and they should do all in their power to avoid embarrassing the Central Government' (House of
Assembly Debates 1913 cols
2050-2 (30 April 1913)). See too col 2337 (12 May 1913).
I Z
THE SOUTH AFRICAN LAW JOURNAL
These remarks were presumably reported and read by members of
the judiciary. Judges are precluded from taking parliamentary speeches
into account in their search for the legislature's intention. But would
not the knowledge that the Government had been obliged to follow
this procedure for reasons of international comity be likely to influence
a judge in pronouncing on the validity of these regulations? Would
not this knowledge, together with the widespread prejudice against
Indians, constitute subconscious forces in the judicial decision? Although
one cannot conclusively say that these stimuli did influence decisions
on the validity of these regulations, I submit that at least some suspicion
of the operation of submerged forces emerges from these decisions.
The validity of these regulations was first questioned in 1914 before
the Natal Provincial Division in In re Seedat.15 In a brief two-page
unreasoned judgment three judges" of that court unanimously upheld
the validity of the exercise of the Minister's powers. The matter then
came before the Cape Court in Mahomed v Immigrants' Appeal Board,"7
where it was held, per Kotz6 and Gardiner JJ, with Searle J dissenting,
that the Minister had exceeded his powers under the Act and that the
regulations were accordingly ultra vires. Both Kotz 7 and Gardiners JJ
formulated their premisses: individuals of the non-white races
differed widely in their educational and economic standards of life
and it was impossible to prohibit all Asians on economic grounds.
Both judges accepted individual merit as the yardstick and refused to
assent to the proposition that Parliament could have intended the Act
to be used to prohibit all non-white Asians under the guise of economic
undesirability.
In the early 1920s the same issue was raised before the Transvaal
Provincial Division in R v Padsha,8° in which three judgessl came to
the same conclusion as the Natal Court. In an appeal from this decision2
the Appellate Division divided three to two in upholding the validity
of the regulations. The majority, consisting of Solomon, De Villiers
and Juta JJA, found that the regulations applied only to the coloured
races of Asia, in accordance with South African practices, s3 and that it
was possible to exclude all coloured Asians on economic grounds.84
In all three concurring judgments there are signs of concession to
white opinion and prejudice."5 Innes CJ and Kotz6 JA, in dissent,
75 (1914) 35 NLR 198.
76 Dove
Wilson JP and Broome and Hathom JU.
77 1917 CPD 159.
78 At 162, 164-5, 170.
79 At 172.
90 Thisjudgment is unreported except for the reference to dicta in the Appellate Division report
of R v Padsha 1923 AD 281.
881 Wessels JP and Mason and De Waal JJ.
2 R v Padsha 1923 AD 281.
- At 286-7, 294, 295.
8 At 288, 292-4.
8 This is implicit in the limitation of Asians to coloured Asians accepted by all three: above
n 83. Solomon JA was prepared to equate the economic requirements of the State with the wellbeing of the State and added that 'I am satisfied that the introduction of other coloured persons
into the Union of South Africa with its vast coloured population and acute coloured problem
would not be conducive to the well-being of the State' (at 288). He continued by saying that in
any event coloured immigrants, even if they were professional men, might be viewed as econo-
JUDICIAL PROCESS
193
refused to use a racial yardstick for an economic determination as
required by the statute. 86 Both emphasized the worth of the individual,
regardless of race, and refused to interpret widely a statute interfering
with individual rights. 81
A few comments on judicial behaviour may now be made on the
basis of these cases. Is it too far fetched to suggest that the provincial
origin and personal philosophy of the judges influenced their decisions?
Is it really surprising that the courts of the provinces with the largest
Indian populations, where anti-Indian prejudice is strongest, found in
favour of the regulations? Is it surprising that the Cape Court, with
its different provincial racial balance and political tradition, found
otherwise? Is it surprising that in the Appellate Division the liberals
Innes CJ and Kotz6JA took a similar view while the Free-State-Transvaler De Villiers JA found for the Minister? That leaves Solomon and
Juta JJA. What forces could have influenced them? History lends
assistance here. In 1914 Solomon JA was chairman of a commission
of inquiry into Indian riots in protest against the 1913 Act led by
Gandhi.88 Did this experience influence his views on the hazards of
Indian immigration and the danger of educated Indian 'agitators'?
This is pure speculation, but Solomon JA was obviously annoyed at
Gandhi's decision to boycott the Commissions and there is an express
reference to Gandhi's disturbing effect on industrial relations in South
Africa in Padsha's case.90 Finally there is the case of Mr Justice Juta.
What could possibly have influenced this 'Cape liberal'? Perhaps it
was the fact that he was a Unionist member of Parliament in 191391
and supported the Inunigrants Regulation Bill in the House of
Assembly.? He must surely have known of the legislature's true
intention. Needless to say, he made no attempt to articulate this premiss
in his judgment in Padsha'scase.93
The final word on these cases belongs to Mr Justice F N Broome,
mically unsuitable for South Africa by 'a reasonable manm' (at 289). Surely, here he meant a
reasonable white man? De Villiers JA invoked a frequently used justification for racial discrimination: 'There are racial problems here as in other parts of the world, but the racial problems of the
Union are peculiar to the Union' (at 293). Juta JA referred to the impact of educated and skilled
Non-Whites on the 'poor-White' problem. Apparently he placed the interests of the 'poor
Whites' first and wished to see them protected from non-white competition (at 296-7).
88 At 300-1, 310-12, 316.
87 At 303, 311. Significantly, both Ines CJ (301-2) and Kotz6 JA (313-16) refused to read the
regulations as prohibiting coloured Asians only. They both insisted that they must extend to all
Asians, white and coloured, if they were to apply at all. They expressly refused to accept the white
South African view that Asian was a term which included coloured races only.
88Report of the Indian Enquiry Commission UG 16-'14.
89Ibid 2-3.
0 Supra at 289. See too Juta JA at 297.
91 He was the Unionist member of Parliament for Cape Town Harbour. For a brief biography
of Sir Henry Juts, see (1915) 32 SALJ 1.
8 Sir Henry Juta was apparently not present in the House when it divided after the second
reading on whether to refer the Bill to a select committee (House of Assembly Debates 1913 col
2338 (12 May 1913)). But the Unionists supported the Bill and he actually participated in the
debate at the committee stage (ibid col 2743 (26 May 1913)).
93 It is interesting to compare this suppression of fact with Kotz J's reference in Masomed's
case to a statute on which he had been consulted by the executive and the Volksraad of the
South African Republic while he was ChiefJustice: supra, at 168.
194
THE SOUTH AFRICAN LAW JOURNAL
who appeared as junior counsel in Seedat's case in 1914. He says that
these cases were decided in accordance with the intellectual make-up
of each individual judge and that
'[i]f I were to go through a list of the names of all the judges I have known well,
either personally or through their judgments, I would have no difficulty in predicting the answer most of them would give to the question which arose in Padsha's
case'.9
There are many other cases involving socio-political problems which
have come before our courts and which could be analysed in the same
way95-induding the controversial cases concerning the interpretation
of the 90-day detention law.96 These cases are, however, too much a
part of recent history to permit an objective appraisal of judicial
behaviour.
The Indian immigration cases suggest that the major inarticulate
premiss of white South Africans has not been absent from the judicial
process.9 7 Of course, there is no conclusive evidence. This could only
be obtained from a thorough study of the backgrounds and behaviour
of individual judges in a large number of cases. Unfortunately, this
type of study, which is accepted as a legitimate research field in the
United States,98 is unlikely to be welcomed in South Africa.
While my disclosure of the subliminal forces at work in the judicial
process may startle laymen, it will not startle lawyers. Every lawyer
of competence 'is a legal realist in his practice, however passionately
he may disapprove of legal realism as an explicit legal philosophy'."
In presenting his case in a 'political trial" every able advocate will
make allowances for the background and views of the judge.2 I shall
94 op cit 121-2.
95Here one thinks particularly of cases such as the Minister of Posts and Telegraphs v Rasool
1934 AD 167, in which the Appellate Division, by a majority of three to one, upheld the reasonableness of separate, equal facilities for different races. An excellent survey of cases of this kind is
to be found in Michael Kuper's The Supreme Court andRace Relations in South Africa, an unpublished
dissertation submitted for the BA (Hons) degree in the University of the Witwatersrand,
Johannesburg.
" Loza v Police Station Commander, Durbanville 1964 (2) SA 545 (AD), Rossouw v Sachs 1964 (2)
SA 551 (AD), Schermbrucker v Klindt NO 1965 (4) SA 606 (AD).
91Cases which endorse this view are Minister of Posts and Telegraphsv Rasool 1934 AD 167 at 177
(Beyers JA), Moiler v Keimoes School Committee 1911 AD 635 at 643-4 (Lord de Villiers), Pitout v
Rosenstein 1930 OPD 112 at 117 (De Villiers JP), R v Hildick-Smith 1924 TPD 69 at 83 (Krause J),
S v Xhego 1964 (1) PH H76 (E) (Van der RPiet AJP).
98 See, for example, the following studies: Stuart S Nagel The Legal Processfrom a Behavioural
Perspective(1969) 177-92; John R Schmidhauser 'Stare Decisis, Dissent and the Background of the
Justices of the Supreme Court of the United States' (1962) 14 University of Toronto LJ 194;
Joel B Grossman 'Social Backgrounds and Judicial Decision-making' (1966) 79 Harv LR 1551.
99Harry W Jones 'Law and Morality in the Perspective of Legal Realism' (1961) 61 Columbia
LR 799 at 803.
1 A forensic myth associated with the myth of the mechanical judge is that there are no
'political trials'-only criminal trials. Believers in this myth are advised to read Kirchheiner
PoliticalJustice, especially at 47.
An interesting example of counsel's attitude towards the background of the trial judge is
afforded by R v Milne andErleigh (6) 1951 (1) SA 1 (AD). Here the Appellate Division was asked
to set aside the conviction of a person convicted of theft and fraud arising out of dealings in
company shares on the ground that the trial judge (Lucas J) had in his writings and political
affiliations 'displayed so pronounced a bias against financiers, capitalists, landowners and persons
who made money by buying and selling shares that it was impossible for him to try the...
accused fairly, as [the] accused was a financier, capitalist and landowner and made money by
JUDICIAL PROCESS
19b
cite but two examples of modem South African court strategy in
political cases designed to appeal to or to neutralize subconscious
judicial influences. First, prosecutors often stress the harmful effects
of the accused's conduct on South Africa's image abroad3 Although
this may not be relevant to the issue before the court it may appeal to
the judge's patriotic emotions. Secondly, defence counsel frequently
'play down' the political elements of a political trial because ofjudicial
feelings of loyalty to the State or to the status quo.4
I have suggested that a mechanical and positivist approach to the
judicial function in the interpretation of statutes involving civil
liberty is a faade which conceals inarticulate premisses. If this is so,
is there anything that can be done to remedy the situation?
I would suggest the following two antidotes. First, a frank recognition on the part of the judiciary that their role is not purely mechanical;
that while interpreting a statute they may create new law by filling in
gaps in the statute; and that in disputes between individual and State
subconscious personal preferences are an ever-present hazard. Secondly,
what is needed is a conscious determination by judges to be guided by
accepted traditional legal values in the exercise of their limited legislative function.
A full understanding of the judicial process on the part of the judge
is the first essential. In the words of Judge Jerome Frank:
'To do their intricate job well our judges need all the dear consciousness of their
purpose which they can summon to their aid. And the pretence, the self-delusion,
that when they are creating, they are borrowing, when they are making something
new they are merely applying the commands given them by some existing external
authority, cannot but diminish their efficiency .... 5 The honest, well-trained judge
with the completest possible knowledge of the character of his powers and of his
6
own prejudices and weaknesses is the best guaranty ofjustice.'
buying and selling shares' (at 9). The appeal was dismissed and Centlivres CJ stated that '(tihe
mere fact that a judge holds strong views on what he conceives to be an evil system of society
does not ... disqualify him from sitting in a case in which some of those evils may be brought to
light' (at 12). For comments on that case see 'EK' in (1951) 68 SALJ 151 and Kirchheimer op cit
at 216-17. Abel-Smith and Stevens give some amusing examples of counsel's exploitation of
judicial prejudices in In Search ofJustice 181-2.
3 This was done frequently by the prosecutor in the course of the trial of Messrs L Gandar and
B Pogrund of the Rand Daily Mail in the so-called prisons trial. Reference to this is made in the
full judgment but not in the extracts in S v South African Associated Newspapers Ltd and others
1970 (1) SA 469 (W). In Madikizela v Minister ofJusticeand Minister of Police, unreported judgment
of the Transvaal Provincial Division, M 254/70 (noted by John Dugard in (1970) 87 SALJ 289),
counsel for the Ministers concerned opposed an application for an order restraining the security
police from assaulting political detainees on the ground that such an order would 'be misused
[and] misquoted overseas' (13-14 of the official transcript of the argument). See too the comment
by Claassen J in Schermbrucker v Klindt NO 1965 (1) SA 353 (T) at 358.
4 For instance, where an accused alleges that he was subjected to third-degree methods of
interrogation while in detention it will often be wise to omit reference to these allegations which,
although highly relevant to the administration ofjustice, are not strictly relevant to the merits of
the accused's guilt.
op cit 121.
6 Ibid 138. See too 143, 147, 159, 255-6, xx-xxi. For a similar plea for the United Kingdom,
see Stevens in (1965) 28 Mod LR 509 at 539.
196
THE SOUTH AFRICAN LAW JOURNAL
A counter-argument to this plea for a frank recognition by the
courts of their true function is put forward by Lord Radcliffe. He,
while personally acknowledging their law-making power, states that
'[ilfjudges prefer to adopt the formula ...that they merely declare the law and do
not make it, they do no more than show themselves wise men in practice. Their
analysis may be weak, but their perception of the nature of law is sound. Men's
respect for it will be the greater, the more imperceptible its development.' 7
Following this defence of judicial somnambulism
Lord Radcliffe
proceeds to argue that even where the judge is aware of his legislative
function he should 'keep quiet' about it because '[w]e cannot run the
risk of finding the archetypal image of the judge confused in men's
minds with the very different image of the legislator'.' While there is
some merit in this argument, I do not find it convincing. 10 In the first
place, it allows the judge who believes he is not a law-maker to engage
inhis legislative task subconsciously without full knowledge of his
responsibilities. Secondly, as far as the public is concerned, this suppression of the truth is not without its hazards. Sometimes the public
becomes aware that in a particular case a judge has changed the law
and this leads to charges of dishonesty, of usurpation of authority and
of revolutionary violation of the judicial oath. In such a case it is
difficult to refute the charges if the judges themselves deny their lawmaking power."
Once there is a clear recognition of the creative powers of the
judiciary in the interpretation of statutes, it will be easier for judges to
be guided by accepted legal values, rather than subconscious preferences, in their lawmaking task. Of course, this suggestion that judges
should be guided by legal values and policy 12 is hardly revolutionary."
In private law' 4 and certain branches of criminal law's our courts have
directed the development of the common law in accordance with
enlightened legal values and judicial policy. All that one is suggesting
is that this approach be extended consistently to the field of civil
liberty, where it is most required.
The Law and its Compass (1960) 39.
8 'To the somnambulist, sleep-walking may seem more pleasant and less hazardous than
wakeful walking, but the latter is the wiser mode of locomotion in the congested traffic of a
modem community. It is about time to abandon judicial somnambulism': Frank op cit 159.
9 'The Lawyer and his Times' in The Path of Law from 1967 (1968) 14, 16.
10For other criticisms of Lord Radcliffe's comments, see Abel-Smith and Stevens In Search of
Justice 192 and Jaffe op cit 7-8.
"1Frank op cit 36-7. See too at 41 and 222-35.
12Some writers describe this as a 'value-oriented' approach (eg R W M Dias 'The Value of a
Value-study of Law' (1965) 28 Mod LR 397) while others describe it as a 'policy-oriented'
approach (eg Myres S McDougal 'Jurisprudence for a Free Society' (1966) 1 Georgia LR 1 and
'Law as a Process of Decision: A Policy-oriented Approach to Legal Study' (1955) 6 Natural Law
Forum 53).
13For further views on this subject see McWhinney op cit ch 10, Friedmann (1961) 61 Columbia
Lk 821 at 843-5, G W PatonJurisprudence3 ed (1964) 113-16.
14 A S Mathews 'A Bridle for the Unruly Horse' (1964) 81 SALJ 312 at 321.
15The Appellate Division under the leadership of Steyn CJ effected major reforms in our
system of criminal law by emphasizing the need for subjective rather than objective guilt:
E M Burchell and P M A Hunt South African CriminalLaw and ProcedureI: General Principlesof
Criminal Law (1970) 35, 120.
JUDICIAL PROCESS
171
What are these legal values or principles that should direct judicial
policy? Again I am not proposing anything novel. They are the jural
postulates which form part of our legal heritage and are designed to
societyfoster the basic political and legal ideal of modem Western
16
the well-being and free development of the individual.
The following are some of the more obvious guiding principles
7
which have their roots in our Roman-Dutch tradition" and have been
acknowledged by our courts in the past: freedom from arbitrary arrest
and detention without trial; freedom from cruel and unusual punishment; the right to legal representation when the individual's liberty is
at stake; the right to be heard in one's own defence before one's liberty
is curtailed; equality before the law; freedom of speech and literary
expression; freedom of the Press; freedom of assembly; and freedom
of movement. These are principles which are given legal form in some
Constitutions-notably that of the United States. In South Africa
they form part of our legal tradition,18 but they have no force of law
except in so far as they have been given statutory formas or are
acknowledged by the courts. Increasingly, they are being shackled by
legislation,2° but there is no reason why the judiciary should participate
in this process-albeit subconsciously. However, in all the cases which
have led to charges of executive leaning at least one of these principles
or jural postulates has been ignored or rejected by the court in the
exercise of its interpretative function.21 Sometimes they have been
16
Friedmann Legal Theory 398. In his Rosenthal Lectures at the Northwestern University
School of Law in 1960 Lord Radcliffe stated: 'We must see ourselves ...as committed for good
to the principle that the purpose of society and all its institutions is to nourish and enrich the
This is the only permanent public policy for countries
growth of each individual human spirit....
such as ours: and there are no considerations of convenience, or material welfare, or national
prestige that can weigh heavily enough to counterbalance it' (The Law and its Compass 65. See
too at 53 and 56). This view is endorsed by Lord Evershed in 'The Judicial Process in Twentieth
Century England' (1961) 61 ColumbiaLR 761 at 791.
17 H R Hahlo and I A Maisels 'The Rule of Law in South Africa' (1966) 52 VirginiaLR 1 at 13.
18 Centlivres CJ stated that the principles embodied in the first nine amendments to the
American Constitution 'may be regarded as constitutional conventions' in South Africa: 1956
Butterworths South African Law Rev 12 and Government under Law 443.
19 Some of these principles are given statutory form in the Criminal Procedure Act 56 of 1955,
but the past decade has witnessed an increase in legislative exceptions to these rules.
20For example, by the 90-day detention law (s 17 of Act 37 of 1963), the 180-day detention law
(s215bis of Act 56 of 1955) and s 6 of the Terrorism Act 83 of 1967, which impose limitations on
procedural safeguards; and by the Reservation of Separate Amenities Act 49 of 1953, which
permits separate and unequal public facilities for different races.
2 Cases in which statutory ambiguities were resolved in favour of the executive at the expense
of the principles of freedom from detention without trial and freedom from cruel and unusual
punishment are Rossouw v Sachs 1964 (2) SA 551 (AD), Loza v Police Station Commander, Durbanville 1964 (2) SA 545 (AD), Schernsbrucker v Klindt NO 1965 (4) SA 606 (AD) (for a comment on
these cases, see Mathews & Albino op cit), Shityuwete v Commissioner of Police (TPD 23 January
1968, unreported) and Madikizela v Minister of Justice and Minister of Police ("PD 23 February
1970, unreported: noted in (1970) 87 SALJ 289). The right to legal representation was denied in
Ex pane Hathorn: In re Officer Commanding Durban Prison Command 1960 (2) SA 767 (D) (sed
contra, Brink v Commissioner of Police 1960 (3) SA 65 (T)). The audi alteram partem rule was too
readily excluded in South African Defence and Aid Fund v Minister ofJustice 1967 (1) SA 263 (AD)
(criticized by Harry Street in (1967) 84 SALJ 385, M Wiechers in (1967) 30 T-R-HR 56 and
Ellison Kahn in 1967 Annual Survey 20). In Mustapha v Receiver of Revenue, Lichtenburg 1958 (3)
SA 343 (AD) and Minister of the Interior v Lockhat 1961 (2) SA 587 (AD) the Appellate Division
declined to apply the 'separate but equal doctrine' where the contract and statute in question did
not expressly permit unequal treatment. Freedom of literary expression received a severe setback
in Publications Control Board v William Heinemann Ltd 1965 (4) SA 137 (AD) (see the critical
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ignored in a blaze of positivist jargon. Sometimes they have been
rejected in the interest of the safety of the State.22 This latter interest
is, however, in time of peace too difficult to dissociate from the interest
of white supremacy.2 3 The principles which I have enunciated are
designed to promote the prime legal value of our legal tradition-the
worth of the individual. They should, therefore, be treated as 'preferred
principles' in the same way that some of the rights contained in the
American Bill of Rights are regarded as 'preferred freedoms'.2 They
should be invoked not only as common-law principles but as guiding
values25 in the interpretation of statutes invading individual liberty.
In adopting this approach judges may risk legislative reversal26 and
executive displeasure, but popularity has never been the goal of
judicial achievement. In a plural society, such as ours, where all
legislative and executive power is vested in one small section of the
population, the judiciary must never be susceptible to the criticism,
however unfair in any instance or as regards any particular judge,
that its primary loyalty is to that section.2 This can only be done by
the fearless promotion of individual liberty-regardless of the group
to which the individual belongs.2 This should be achieved by valueassessment of this decision by Ellison Kahn in (1966) 83 SALJ 278). The principle of the freedom
of the Press was not given sufficient attention in S v South African Associated Newspapers Ltd
1970 (1) SA 469 (W). Freedom of movement was sacrificed in favour of a wide ministerial
discretion in Minister of Justice v Hodgson 1963 (4) SA 535 (T).
'2 In particular, see Rossouw v Sachs 1964 (2) SA 551 (AD) at 5624. Cf the comment of
Mr Justice Schreiner on this case: 'Saluspopuli suprema lex has no doubt a proper role to play as a
substantive defence in certain cases, but it is not a rule of interpretation': The Contribution of
English Law to South African Law 'Hamlyn lectures, 1967) 25.
23Mathews & Albino op cit 28-9, 42-3.
24 Alpheus Thomas Mason 'The Core of Free Government, 1938-40: Mr Justice Stone and
"Preferred Freedoms"' (1956) 65 Yale LJ 597; W Friedmann Law in a Changing Society (1959)
46-8. In private law personal liberty is generally accepted as a preferred value: Richard O'Sullivan
'A Scale of Values in the Common Law' (1937) 1 ModLR 27.
25See further on this subject, Paul Weiler 'Legal Values and Judicial Decision-making' (1970)
48 CanadianBar Rev 1.
26Jaffe has an interesting comment on this subject in English and AmericanJudges as Lawmakers:
'A court should not hesitate to act because it fears that the legislature may reverse its action. As a
matter of fact, this fear may arise not so much from subservience as from a sense of superiority.
There are those who would lead the judges to believe that they are the only true oracles of the
law and that they alone are the bulwark against injustice and abuse of power. Ironically, this may
produce not boldness but caution, caution lest legislative correction tarnish the image of
infallibility' (at 20).
21This fact that the courts are not to be guided by white opinion only was dearly recognized
by Centlivres CJ in Tayob v Ermelo Local Road TransportationBoard 1951 (4) SA 440 (AD), where
the learned judge rejected a reference to the relevance of 'public opinion' when it was implicitly
limited to white opinion. He suggested that the court was obliged to take both white and
non-white opinion into account in assessing public opinion (at 446). (This dictum was strongly
attacked by Mr G F van L Froneman in the House of Assembly in 1953. The latter speaker dearly
equated 'public opinion' with white opinion: House of Assembly Debates vol 82 cols 2046 and
2052 (20 August 1953).) Similarly, in Statute Law and Subordinate Legislation (1957) Mr Justice
L R Caney emphasizes the important role of the courts in deciding upon the reasonableness of
subordinate legislation 'for the protection of minorities and also of the politically inarticulate'
because the majority of the population 'has the most meagre, and often no, part in the process of
government' (106).
28 The objection raised in democratic countries that judicial law-making is undemocratic (see
Jaffe op cit 30ff) is hardly applicable in South Africa, where the political process is essentially
non-democratic. For the same reason the 'presumption of constitutionality' (McWhinney op cit
174-5) raised in countries where the legislature is representative of the majority of the population
should not apply in South Africa. Cf Caney op cit 105-6.
JUDICIAL PROCESS
1Y
oriented statutory interpretation, but where the statute unambiguously
suppresses individual liberty or equality before the law that should
not be the end of the matter. Our judges have not hesitated to criticize
legislation contrary to justice and reason in the sphere of private law 29
and those branches of public law which are politically colourless.30
Legislation providing for compulsory whippings' and imprisonment 2
has also received the full force of judicial censure and these strictures
have resulted in enlightened reforms.38 To me there seems to be no
reason why this salutary practice should not be extended to statutes
invading civil libertym for, as Lord Denning has pointed out, judicial
observations 'may form an important basis of public opinion... [and]
[i]f matters come before [judges] where injustice is being done, they
are entitled to point it out so that the public may know of it and form
an opinion upon it'.m This is not a plea for off-the bench criticism of
legislation-although this may be called for in extreme cases3 -but
for firm censure from the bench of those statutes which conflict with
the fundamental legal principles upon which our system is based. At
the most such statements might serve to influence the legislature. At
the least they would constitute judicial dissociation from those policies
of the legislature and the executive which pursue purely sectional
interests.
The course I have advocated can best be described in jurisprudential
terms as the rejection of positivism as a legal creed and the adoption of
a realist-cum-natural-law approach to the judicial process and civil
liberty. This may sound ridiculous as, traditionally, the legal realists
and those who belong to the school of natural law are seen as irreconcilable enemies. But the two schools have much in common. Professor
Harry W Jones of Columbia Law School states:
'In its approach to the law-morality problem, legal realism is closer, in one
important sense, to the natural law position than to the position of conventional
analytical jurisprudence. If the realist analysis is right, the day to day work of
judges, law officers, and practising lawyers involves processes far less orderly and
far more intricate than the application of positive law generalizations to factsituations falling more or less neatly within them. In leeway situations, the positive
law is is not a command but, at most, an authorization of alternative decisions. The
29 See for example Hitzeroth v Brooks 1964 (4) SA 443 (E) at 446-8 and 1965 (3) SA 444 (AD)
at 451; Mathews v Central Mining and Investment CorporationLtd 1956 (1) SA 731 (W) at 733.
s CIR v Estate Crewe 1943 AD 656 at 688-9, Naicker v Naidoo 1959 (3) SA 768 (D).
31See R v Jim Ndhlovu, cited in G A Mulligan 'Judicial Criticism of Legislation' (1953) 70
SALJ 35; S v Kumalo 1965 (4) SA 565 (N) at 574.
32Mulligan op cit 36-7; S v Khumalo 1966 (2) SA 536 (N).
33 Compulsory whipping was abolished by s 12 of the Criminal Procedure Amendment Act
96 of 1965 and compulsory sentences of imprisonment were modified by the introduction of
s 335A of the Criminal Procedure Act 56 of 1955 by s 20 of the Criminal Procedure Amendment
Act 9 of 1968.
4 See the thoughtful comments on this subject by Searle J in R v Jacobs 1925 CPD 20 at 26.
3 'The Spirit of the British Constitution' (1951) 29 Canadian Bar Rev 1180 at 1193. See too
Mulligan op cit; Mathews & Albino op cit 38. Sed contra Mr Justice L C Steyn in (1967) 30
THR-HR 107.
36 As in the case of Mr Justice Marais' criticism of s 29 of the General Law Amendment Bill
of 1969: Rand Daily Mail 27 June 1969.
ZUU
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choice between alternatives, the selection of the path to be pursued, can not but be
influenced by the decision-makers' ought to be. Legal realism, with its emphasis on
the inevitability of choice and discretion in the life of the law, casts its vote-though
for very different reasons-with the tradition of natural law, and against Austin
and the positivists, on the old issue of the complete analytical separateness of the
law that is from the law that ought to be.'37
Finally one must consider the relevance of this philosophy to legal
education. Traditionally, our law schools concentrate on teaching
students the positive rules of law 'in the spirit of Euclidian geometry'. 3s
Little attempt is made to reveal to them the nature of the judicial
process. One does not have to go all the way with the legal realists
to believe that it is important to introduce students to the reality of
the judicial process.3 This should be done by arranging for them to
observe the courts in operation and by a study of judicial decisions
from a legal realist perspective. Hopefully, it might be possible to
conduct research on judicial behaviour as is at present done in the
United States.
But legal realism on its own is too sceptical and too destructive a
force. While it may serve a useful purpose in destroying harmful
myths, it must be coupled with a natural-law, value-oriented approach
to legal processes and legal education. This places a burden on the law
school to instil in its students an awareness of the legal values upon
which Western civilization and our legal system are based.4 0 They
might then promote these values-articulately-when they enter legal
practice.41
Adherence to legal positivism has reduced the legal profession to
the status of a technical trade in the eyes of the public. It has undermined the profession's claim to leadership in our society. A new
creed is called for, based upon the scepticism infusing legal realism and
the idealism inherent in natural law. Such a creed, I believe, would
transform our forensic bricklayers into social architects. 4 2
JOHN DUGARD*
87'Law and Morality in the Perspective of Legal Realism' (1961) 61 Columbia LR 799 at 808.
Support for this approach is also to be found in the writings of Edmond Cahn (eg 'Jerome
Frank's Fact-skptism and our Future' (1957) 66 Yale LJ 824 at 831) and Karl Llewellyn (Jurisprudence: Realism in Theory and Practice(1962) 115).
3aArthur Suzman 'Administrative Law in England: A Study of the Report of the Committee
on Ministers' Powers' (1933) 18 Iowa Law Rep 160 at 168-9.
39Frank op cit 143 and 'A Plea for Lawyer-schools' (1947) 56 Yale LJ 1303.
40See the plea by Mr Arthur Suzanan QC for greater attention to law reform and the law as it
ought to be in legal education: 'The Function of the University in the Training of Advocates'
(1962) 79 SALJ 374 at 387-9.
42Cf Davis op cit 216.
0 See the comment by Davis AJA in Feldman (Pty) Lad v Mall 1945 AD 733 at 789: '[The
judiciary] should not be content to be merely bricklayers: we should be architects.' This dictum
paraphrases the statement by Counsellor Pleydell in Sir Walter Scott's Guy Mannering: 'A lawyer
without history or literature is a mechanic, a mere working mason; if he possesses some knowledge
of these, he may venture to call himself an architect' (ch 37).
* BA LL B (Stell) LL B Diploma in International Law (Cantab), Advocate of the Supreme
Court of South Africa, Professor of Law in the University of the Witwatersrand, Johannesburg.